Are Facebook “Likes” Protected By The First Amendment?

Contributed by Ryan P. Siney

The United States Court of Appeals for the Fourth Circuit has ruled that clicking the “like” button on a Facebook page is a form of free speech protected by the First Amendment.  The case, Bland v. Roberts, was filed by employees of a sheriff’s office who claimed they were fired because they supported the sheriff’s opponent in the sheriff’s re-election campaign.  The employees alleged that their termination was based in part on the fact that they had “liked” the Facebook page of the sheriff’s opponent, and argued and that their Facebook activity was a constitutionally protected form of free speech which could not form the basis for their termination.

The trial judge concluded that clicking a Facebook “like” button is not a form of expression sufficient to be considered free speech protected by the First Amendment.  The appeals court reversed the trial judge and found that clicking “like” on a political candidate’s Facebook page is the digital equivalent of putting a political sign in a front yard (which the United States Supreme Court has already determined is a constitutionally protected form of free speech).  Like a yard sign, according to the appeals court, clicking “like” conveys a message about the user and is an expression of the user’s opinion which must be protected by the First Amendment.

The full opinion of the United States Court of Appeals for the Fourth Circuit can be read here.

This case illustrates the caution that employers (especially government and public sector employers) must exercise when disciplining or terminating an employee based on the employee’s expression of opinion.  What is important is the substance of the employee’s speech rather than the venue in which the expression is made.  The trend in the law is to treat expressions of opinion made on the internet in the same way as expressions made elsewhere — if the speech would be protected by the First Amendment when made in a traditional setting, courts seem willing to treat similar statements as constitutionally protected when made in a digital setting.